by an enactment; protection of women; the provision of benefits by charities; and in sport and sporting competitions.
129. We return to several of these provisions below.
(11) The relevant protection afforded by the EA 2010 to individuals and groups
130. The EA 2010 operates to protect both individuals and groups of people who share a protected characteristic from unlawful discrimination. It has been amended from time to time since its enactment, most recently by the Equality Act 2010 (Amendment) Regulations 2023 (SI 2023/1425) (which inserted section 19A referred to below). The version we refer to below is the version as in force at the date of this judgment.
(i) For individuals
131. At an individual level it does so primarily by means of a general prohibition against less favourable treatment in the form of overt or direct discrimination (section 13) because of one or a combination of individual protected characteristics or by means of more specific direct discrimination provisions which operate similarly in relation to particular characteristics (of relevance here are sections 16 in relation to gender reassignment, and sections 17 and 18 in relation to pregnancy and maternity discrimination).
132. Section 13(1) provides the general definition for direct discrimination as follows:
“(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
133. There are three points to note about section 13 at this stage.
134. First, to demonstrate less favourable treatment in subsection (1) an actual or hypothetical comparator is often relied on to demonstrate that a person without the relevant protected characteristic was or would have been treated more favourably by person A. Such a comparator (actual or hypothetical) must be a person who does not share B’s protected characteristic. Section 23(1) makes clear that, apart from the protected characteristic, there must be “no material difference between the circumstances relating to each case” when determining whether B has been treated less favourably. Accordingly, where sex is the protected characteristic, a woman relying on section 13(1) must compare her treatment with the treatment that was or would have been afforded to a man whose
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